Know The Law – “Linked In”

June 5, 2010

Published in the Union Leader

This question was answered by Charla Bizios Stevens of the McLane Law Firm

Q:  I own a small business and recently terminated an employee because she engaged in an altercation with a client which might have become physical if no one had stepped in.  My Executive Assistant sent me an invitation to become part of her “network” on Linked In.  When I read my assistant’s profile, I saw that she had written a glowing recommendation for the terminated employee.  She does not know the reasons for the termination.  Should I tell my assistant why the employee was terminated and ask her to remove the recommendation?
A:   Digital and business networking sites are becoming extremely popular and certainly have a place of prominence in the business world.  Even if you do not use these sites, it is critical to become conversant in their use and purpose and to learn how to protect yourself and your business from missteps that might damage your reputation or lead to legal liability.

Since you have not shared with your assistant the reason for the employee’s termination, you probably already know that you should not do so.  This is confidential personnel information which should not be disseminated beyond those in the company who have a need to know: executive management, the employee’s direct supervisor and the human resources manager, if you have one.  If your Assistant is sending out positive recommendations about this employee on the internet, they were either good friends or she has misinformation about the former employee’s performance.  Either way, she may resist any request you make of her and argue that her online communications are her own business and that you should have no say.
The question here really involves two policies that should be in your company handbook – one concerning employee references and one governing electronic communications. 

First, if your company has a policy which states that all requests for employee references or recommendations must go through the human resources department or a particular member of management, you may have a basis to ask that your assistant remove the reference if it relates to the former employee’s work at your company.
Second, if you have documented and well-communicated electronic communications policies, they may clearly prohibit your assistant’s behavior (use of work computer for personal reasons, discussing your company or business in on-line communication).  In that case, you may also ask her to remove the reference or face discipline.  Many companies also have polices prohibiting discussion of the company or its employees on line for other than authorized marketing or customer relations reasons.

If your company does not have these policies in place, you should consult your attorney or work with your human resources manager to establish them to protect your company’s good name in such an instance going forward.  In your case, you might also be legitimately concerned about a suit being filed by someone at a new place of business who is harmed or injured by your former employee.  

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